Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the 

case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

ROBERT W. ROCK J. DAVID ROELLGEN

Jones Wallace, LLC Kolb Roellgen & Kirchoff, LLP

Evansville, Indiana Vincennes, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MARK A. VALDES and JAMES H. VALDES, )

)

Appellants-Plaintiffs, )

)

vs. ) No. 42A01-1302-PL-88

)

VINCENNES BUILDING and SAFETY )

COMMISSION and the CITY OF VINCENNES, )

)

Appellees-Defendants. )

APPEAL FROM THE KNOX CIRCUIT COURT

The Honorable Sherry B. Gregg Gilmore, Judge

Cause No. 42C01-1112-PL-650

November 27, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Mark Valdes1 appeals the trial court’s judgment affirming an order by the City of 

Vincennes Building and Safety Commission to demolish a hotel owned by him. We affirm.

Issues

The restated issues before us are:

I. whether Mark timely sought judicial review of the 

demolition order;

II. whether the trial court properly denied Mark’s motion 

to dismiss;

III. whether Mark was denied due process of law;

IV. whether the trial court properly affirmed the demolition 

order;

V. whether the trial court properly denied Mark’s motion 

to correct error; and

VI. whether the trial court properly required Mark to post a 

bond of $500,000 in order to stay execution of the 

demolition order during the pendency of this appeal.

Facts

On April 5, 2007, the State Department of Homeland Security, Division of Fire and 

Building Safety (“DHS”), filed an action for a preliminary and permanent injunction 

against Zoheir Maarouf, owner of the Executive Inn in Vincennes, for multiple alleged 

violations of fire and building safety codes, following a fire at the property. The action 

was filed in the Knox Superior Court. The DHS’s action sought an injunction to force the 

 

1

James Valdes was involved during the proceedings below but died while they were ongoing; he is still 

listed as a named party in this appeal.
3

closure of the Executive Inn until such time as necessary repairs to the building were made. 

On April 17, 2007, the Knox Superior Court granted a preliminary injunction closing the 

Executive Inn. Later, however, the Executive Inn was permitted to partially re-open while 

repairs to it were made. Maarouf sold the Executive Inn to Mark and James Valdes in July 

2007, and the Valdeses were substituted as defendants in the action. On September 29, 

2008, DHS filed a “Proposed Plan of Correction” for the Executive Inn. Appellee’s App. 

p. 6.

On August 11, 2009, the City of Vincennes (“the City”) filed a separate action in 

Knox Superior Court against the Valdeses, seeking an injunction forcing them to vacate 

the Executive Inn based on multiple building safety code violations alleged to have been

found during a City inspection conducted by the City’s building inspector, Chris Eisenhut. 

On August 14, 2009, the City’s action was consolidated into the pre-existing DHS case. 

On August 19, 2009, the Knox Superior Court entered a preliminary injunction requiring 

the full closure and vacating of the Executive Inn until further order of the court, while 

permitting the Valdeses, their relatives, and hired repairmen onto the premises to make 

repairs. The court also noted in this order that the Valdeses had failed to submit a plan of 

correction for the property, despite having been ordered in June 2008 to provide one. The 

Valdeses finally submitted such a plan on February 18, 2010.

On November 3, 2010, while the action before the Knox Superior Court was still 

pending, Eisenhut, acting in his official capacity, issued an “Order of Demolition,” stating 

that the Executive Inn needed to be demolished because it was an “unsafe building” as 

defined by Indiana law, “as it is in an impaired structural condition that makes it unsafe to 
4

the public, is a fire hazard and is a hazard to public health.” Appellant’s App. p. 188. This 

order required demolition of the Executive Inn within twenty days, subject to the Valdeses’

right to contest the order before the City’s Building and Safety Commission (“the 

Commission”). On November 30, 2010, and December 7, 2010, the Commission

conducted several hours of hearings at which the Valdeses contested the demolition order.

On January 18, 2011, the Commission conducted public deliberations and orally 

announced that it would give the Valdeses until December 1, 2011 to repair the Executive 

Inn. On February 22, 2011, the Commission entered a written order expressly modifying 

the demolition order, providing the Valdeses until December 1, 2011 “to make all 

necessary repairs, remediation, and correction of Code violations to the Executive Inn . . . 

.” Id. at 39. The order concluded that, if the Valdeses failed to prove that they had made 

the needed repairs to the Executive Inn by December 1, 2011, as evidenced by a certificate 

from a licensed architect, that “the Commission shall reconvene a public meeting to 

consider further Orders, which may include an Order of Demolition of the Executive Inn.” 

Id. at 40.

The Valdeses failed to submit the required architect’s certificate indicating that they 

had repaired the Executive Inn by December 1, 2011. The Commission convened a hearing 

on that date to determine the fate of the Executive Inn. Eisenhut testified regarding the 

Valdeses’ failure to repair the property. In fact, the Valdeses had not applied for any 

permits with respect to any repair work until October 26, 2011; this permit request was for 

electrical and drywall work only, which would have fallen well short of the work needed 

on the property. The Valdeses’ attorney was not allowed to cross-examine Eisenhut, but 
5

James Valdes and his attorney discussed why they believed it would be inappropriate to 

order immediate demolition of the Executive Inn.2 James stated that although the property 

was mortgage-free, it was impossible to obtain financing for repairs of the property with 

the threat of demolition hanging over it. He also stated that he had hopes that an incoming 

new mayoral administration for the City, set to take office in January 2012, would be more 

receptive to his concerns. He further alleged that the current mayor and a partner had a 

particular interest in tearing down the Executive Inn so that an entirely new hotel could be 

built on the land, and that one of the Commission members had been overheard in public 

discussing this interest. James also claimed never to have received a definitive list of 

repairs that needed to be made to the building in order for it not to be demolished.

At the conclusion of this hearing, the Commission voted to allow the demolition of 

the Executive Inn to proceed. On December 9, 2011, the Valdeses filed a complaint for 

judicial review of the Commission’s order in the Knox Circuit Court (“the trial court”). 

James Valdes passed away in February 2012. On April 27, 2012, Mark Valdes filed a 

“Motion to Dismiss,” asserting that the City’s demolition action should be dismissed 

because it conflicted with the already existing action in Knox Superior Court that had been 

brought by the DHS and later joined in by the City. The City also filed a motion to dismiss, 

claiming that Mark did not timely file a challenge to the Commission’s ruling of February 

22, 2011. The trial court held a hearing on these motions on October 9, 2012, and 

 

2 Unfortunately, there are many inaudible portions noted on the transcript of this hearing.
6

subsequently denied both of them. On December 12, 2012, the trial court issued an order 

affirming the Commission’s demolition order.

On December 14, 2012, having not yet received a copy of the trial court’s December 

12, 2012 ruling, Mark filed a motion requesting an evidentiary hearing. On December 21, 

2012, the trial court denied Mark’s motion, stating in part “that all parties agreed that the 

Court would proceed with a ruling in this cause without further hearing.” App. p. 321. On 

January 9, 2013, Mark filed a motion to correct error. The motion was accompanied by an 

affidavit from Mark, alleging in pertinent part that Eisenhut had interfered with or refused 

to issue permits for repairs to the Executive Inn and had threatened potential contractors 

that they would never work in the City again if they performed work for the Valdeses. The 

affidavit also restated the assertion that the previous mayor of the City had wanted the land 

where the Executive Inn was located for the building of a new hotel for him and his partner, 

and that one of the Commission members was aware of this fact.

On January 29, 2013, the trial court denied Mark’s motion to correct error. Mark

timely initiated an appeal from this ruling and sought a stay of enforcement of the 

demolition order pending appeal. The trial court conducted a hearing on this request, and 

on May 29, 2013, it entered an order staying enforcement of the demolition order pending 

appeal, but also requiring Mark to post an appeal bond of $500,000. Mark filed a motion 

with this court challenging the appeal bond requirement, requesting that it be eliminated 

altogether or modified to a “very modest amount . . . .” On July 29, 2013, the motions 

panel of this court denied Mark’s motion. The case now comes before us fully briefed.

Analysis
7

I. Timeliness of Request for Judicial Review

Before addressing Mark’s arguments, we first address the City’s claim that the 

Valdeses did not timely request judicial review of the Commission’s ruling(s) and that the

request for judicial review filed on December 9, 2011, was far too late. Indiana’s Municipal 

Unsafe Building Act (“the Act”)3is codified at Indiana Code Chapter 36-7-9. Indiana Code 

Section 36-7-9-8 provides in part:

(a) An action taken under section 7(d) or 7(e) of this chapter is 

subject to review by the circuit or superior court of the county 

in which the unsafe premises are located, on request of:

(1) any person who has a substantial property interest in 

the unsafe premises; or

(2) any person to whom that order was issued.

(b) A person requesting judicial review under this section must 

file a verified complaint including the findings of fact and the 

action taken by the hearing authority. The complaint must be 

filed within ten (10) days after the date when the action was 

taken.

Indiana Code Section 36-7-9-7 in turn provides that a “hearing authority” must hold a 

hearing with respect to a demolition order issued by a municipal “enforcement authority”; 

in the present case, the Commission was the “hearing authority” and the City’s building 

inspection department, through Eisenhut, was the “enforcement authority.” Subsection (d) 

of Section 36-7-9-7 specifically provides:

At the conclusion of any hearing at which a continuance is not 

granted, the hearing authority may make findings and take 

action to:

 

3 This is not an “official” name of the Act.
8

(1) affirm the order;

(2) rescind the order; or

(3) modify the order, but unless the person to whom the order 

was issued, or counsel for that person, is present at the hearing, 

the hearing authority may modify the order in only a manner 

that makes its terms less stringent.

The City contends that, under Section 36-7-9-8(b), the Valdeses were required to 

file a request for judicial review within ten days of either the Commission’s oral ruling of 

January 18, 2011, or its written ruling of February 22, 2011. We disagree. The 

Commission’s rulings of January 18, 2011 and February 22, 2011, modified Eisenhut’s 

earlier demolition order by providing the Valdeses with until December 1, 2011 to make 

necessary repairs to the Executive Inn, rather than immediately proceeding to demolition. 

The Commission did not make a final decision to immediately proceed with the Executive 

Inn’s demolition until December 1, 2011. It is that final demolition decision that Mark 

now wishes to challenge, and his request for judicial review filed eight days thereafter was 

timely. We would agree, however, that Mark is now precluded from indirectly challenging 

any part of the February 22, 2011 order, such as the length of time given to remediate the 

property, or the fact that the order did not completely rescind the demolition order, or that 

the order allegedly did not provide adequate notice of what precisely the Valdeses needed 

to do repair-wise in order to avoid demolition. See Quaker Properties, Inc. v. Department 

of Unsafe Bldgs. of City of Greendale, Ind., 842 N.E.2d 865, 868 (Ind. Ct. App. 2006) 

(holding that party who does not timely seek review of unsafe building order waives right 

to judicial review of the order), trans. denied. 
9

II. Motion to Dismiss

We next address whether the trial court properly denied Mark’s motion to dismiss. 

On this point, Mark first invokes Indiana Trial Rule 12(B)(8), which “permits dismissal of 

an action when ‘[t]he same action [is] pending in another state court of this state.’” Beatty 

v. Liberty Mut. Ins. Group, 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008). However, what 

Mark was really seeking by his motion to dismiss was to dismiss the underlying 

administrative action by the City. Needless to say, it would ordinarily be odd for a civil 

plaintiff to invoke a Trial Rule 12 defense to dismiss his or her own civil action; clearly, 

Mark did not want outright dismissal of his petition for judicial review before the trial 

court, which would have resulted in the demolition order remaining intact. On its face, 

Trial Rule 12(B)(8) would not seem to apply to this situation.

Regardless, we will address Mark’s argument that the principles underlying Trial 

Rule 12(B)(8) should have precluded the City’s administrative action to demolish the 

Executive Inn, given the pre-existing Knox Superior Court case initiated by the DHS and 

later joined in by the City which sought to force the Valdeses to repair the property. “Trial 

Rule 12(B)(8) implements the general principle that, when an action is pending in an 

Indiana court, other Indiana courts must defer to that court’s authority over the case.” Id. 

This principle applies when the parties, subject matter, and remedies sought are precisely 

the same in two different actions, and it also applies when they are only substantially the 

same. Id. “Courts observe this deference in the interests of fairness to litigants,

comity between and among the courts of this state, and judicial efficiency.” Thacker v. 

Bartlett, 785 N.E.2d 621, 625 (Ind. Ct. App. 2003).
10

Here, although the parties and subject matter of the Knox Superior Court action and 

the City’s administrative action are similar, the remedies sought in the two actions are quite 

different and not substantially the same. In fact, it appears that the remedy sought in the 

administrative action—demolition—was not available in the Knox Superior Court action. 

First, the DHS’s authority for bringing its action was derived from Indiana Code Chapter 

22-12-7, which permits the DHS to bring administrative and/or trial court actions to enforce 

the State’s fire and building safety codes. Indiana Code Section 22-12-7-7 lists the 

sanctions that the DHS may seek to impose against owners (or controllers) of property that 

are in violation of the fire and building safety codes, which include requiring the owner to 

cease and correct the violation(s), requiring persons to leave and stay away from an area 

affected by the violation, revoking permits or licenses associated with property, and/or 

imposing civil fines against the owner. Nothing in the statute authorizes the DHS to seek 

demolition of a property that is in violation of the fire and building safety codes.

Second, the City relied upon the Act in both issuing the demolition order and in 

filing the Knox Superior Court action. The Act permits municipalities to adopt the Act by 

ordinance for direct enforcement by municipalities to address the danger of “unoccupied 

structures that are not maintained and that constitute a hazard to public health, safety, and 

welfare.” Ind. Code § 36-7-9-4.5(a). Indiana Code Section 36-7-9-5 delineates the actions 

and orders a municipality’s “enforcement authority” may issue with respect to unsafe 

buildings. One such order is for the “demolition and removal of an unsafe building if: (A) 

the general condition of the building warrants removal; or (B) the building continues to 

require reinspection and additional abatement action after an initial abatement action was 
11

taken pursuant to notice and an order . . . .” I.C. § 36-7-9-5(a)(7). It is under this subsection 

that Eisenhut had the authority to administratively issue the original demolition order. 

Such administrative orders for demolition are subject first to review by a municipal 

“hearing authority” under Indiana Code Section 36-7-9-7, and then to judicial review under 

Indiana Code Section 36-7-9-8.

In addition to purely administrative action, subject to judicial review, a municipality 

“may bring a civil action regarding unsafe premises in the circuit, superior, or municipal 

court of the county.” I.C. § 36-7-9-17(a). This statute further provides:

A civil action may not be initiated under this section before the 

final date of an order or an extension of an order under section 

5(c) of this chapter requiring:

(1) the completion; or

(2) a substantial beginning toward accomplishing the 

completion;

of the required remedial action.

I.C. § 36-7-9-17(b). This language contemplates that the bringing of a civil action is 

intended to force a recalcitrant property owner to comply with already-existing 

administrative orders. It is under this statute that the City was authorized to file the Knox 

Superior Court action. That action specifically was an “emergency” action to force the 

Valdeses to comply with previous orders by Eisenhut to immediately vacate the Executive 

Inn and to prevent anyone from entering it, which the Valdeses were ignoring. App. p. 

283. Ordering the vacating of an unsafe building and preventing anyone else from entering 
12

such a building are additional actions a municipality’s “enforcement authority” may take 

under Indiana Code Section 36-7-9-5. 

Indiana Code Section 36-7-9-17 also specifies that trial courts “may grant one (1) 

or more of the kinds of relief authorized by sections 18 through 22 of this chapter.” I.C. § 

36-7-9-17(a). This limited grant of authority seems to indicate that trial courts are not 

necessarily empowered to issue any order that a municipality could have issued by itself

under Indiana Code Section 36-7-9-5. No language in sections 18 through 22 refer to a 

trial court having the same authority as a municipality has under Section 36-7-9-5, nor do 

any of them mention a trial court having the authority to order the demolition of a building.

The Knox Superior Court action was always aimed towards trying to make the 

Executive Inn safe and to force the Valdeses to make needed repairs and not to demolish 

it, consistent with the extent of trial court authority regarding unsafe buildings and fire and 

building safety regulations under Indiana Code Chapter 36-7-9 and Indiana Code Chapter 

22-12-7. Thus, the demolition remedy sought in the purely administrative action by the 

City was not substantially the same as, and appears not even to have been a possibility in, 

the Knox Superior Court action. The principles underlying Indiana Trial Rule 12(B)(8) 

did not preclude the City from administratively seeking demolition of the Executive Inn, 

notwithstanding the Knox Superior Court action.

Mark also invokes the election of remedies doctrine as a basis for precluding the 

City’s demolition action, claiming the City had chosen to participate in the Knox Superior 

Court action and thus could not bring a separate administrative demolition action. The 

election of remedies doctrine is equitable in origin and is intended to prevent excessive and 
13

repetitive litigation. McMichael v. Scott County School Dist. No. 2, 784 N.E.2d 1067, 

1070 (Ind. Ct. App. 2003). “The doctrine applies when a party who has two co-existing 

but inconsistent remedies elects to pursue one remedy to a conclusion rather than sue on 

the other remedy.” Id. If there are concurring effectual remedies, choosing one remedy 

and prosecuting it without interruption excludes all other remedies. Id.

Here, it is not clear that the City uninterruptedly prosecuted the Knox Superior Court 

action to a definitive conclusion or that the two actions were necessarily conflicting. 

Having been provided with copies of the CCS in the Knox Superior Court case and some, 

but not all, of the pertinent motions and rulings in that case, the purpose of that case was 

to compel remediation to the Executive Inn and/or to prohibit any persons from entering 

the property, except for workers or the Valdeses, until the building was brought up to code. 

At one point a permanent injunction was sought against the Valdeses, but it does not appear 

that one was ever entered. Rather, there was a preliminary injunction, which was 

subsequently modified. 

At the time that Eisenhut filed his demolition order, the City notified the Knox 

Superior Court of it. After that date, in December 2010, there was further action in the 

Knox Superior Court case consisting of the Valdeses filing a motion asking the court to 

find that the Executive Inn “is in compliance with all applicable fire and building safety 

codes . . . .” Appellee’s App. p. 15. The Knox Superior Court denied this motion on 

January 11, 2011. There is no further action listed in the CCS after this date, aside from 

attorney appearances and withdrawals of appearances. It thus appears that the City pursued 

the Knox Superior Court action until such time as it became apparent that the Valdeses 
14

were not going to adequately remediate the problems at the Executive Inn despite having 

several years to do so, at which time it switched tactics and sought demolition of the hotel, 

using an administrative procedure that does not seem to have been available to the Knox 

Superior Court. We do not believe the City’s actions violated the election of remedies 

doctrine.

Finally, Mark argues that the City’s actions violated the separation of powers 

doctrine. Article 3, Section 1 of the Indiana Constitution states, “The powers of the 

Government are divided into three separate departments; the Legislative, the Executive 

including the Administrative, and the Judicial: and no person, charged with official duties 

under one of these departments, shall exercise any of the functions of another, except as in 

this Constitution expressly provided.” “The judiciary is one of the three co-equal branches 

of government and its independence is essential to an effective running of the government.” 

State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000). Mark asserts that the City’s 

administrative action infringed upon the independence of the Knox Superior Court.

We observe that it has long been held that the separation of powers doctrine of 

Article 3 does not apply to municipalities and their agencies. Willsey v. Newlon, 161 Ind.

App. 332, 333, 316 N.E.2d 390, 391 (1974). We accept that a municipal-level 

administrative agency cannot take action that conflicts with or purports to supersede the 

actions of a State trial court. See Indiana Dep’t of Natural Res. v. Newton County, 802 

N.E.2d 430, 433 (Ind. 2004) (holding county could not pass ordinances purporting to 

regulate State agency activity). As we have discussed, however, there is no inherent 

conflict between the Knox Superior Court action and the City’s administrative action, given 
15

the different remedies sought in the two actions and the fact that demolition could only be 

sought via the administrative action.4 

Whether framed as an issue of comity, election of remedies, or separation of powers, 

there was no bar to the City seeking demolition of the Executive Inn through administrative 

proceedings under the Act because the action did not irreconcilably conflict with the preexisting Knox Superior Court action. The trial court properly denied Mark’s motion to 

dismiss.

III. Due Process

Next, we address Mark’s claim that his procedural due process rights were violated 

by the City, the Commission, and the trial court in the issuance and eventual affirmance of 

the demolition order. The requirements of due process are not set in stone and may vary 

based on the circumstances, in accordance with the balancing test adopted by the Supreme 

Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976):

[I]dentification of the specific dictates of due process generally 

requires consideration of three distinct factors: First, the 

private interest that will be affected by the official action; 

second, the risk of an erroneous deprivation of such interest 

through the procedures used, and the probable value, if any, of 

additional or substitute procedural safeguards; and finally, the 

Government’s interest, including the function involved and the 

fiscal and administrative burdens that the additional or 

substitute procedural safeguard would entail.

 

4

If the Knox Superior Court had found the Executive Inn to be adequately repaired, then the City’s seeking 

to demolish the building in a separate administrative action would be troublesome, but the court made no

such finding.
16

The most basic requirement of procedural due process is the right to be heard at a 

meaningful time and in a meaningful manner. Parker v. Indiana State Fair Bd., 992 N.E.2d 

969, 978 (Ind. Ct. App. 2013). This court has held that, as a general rule, a municipality’s 

adherence to the Act’s procedures in addressing unsafe buildings affords a property owner 

sufficient due process protection. Starzenski v. City of Elkhart, 659 N.E.2d 1132, 

1139 (Ind. Ct. App. 1996), trans. denied, cert. denied. Although a property owner’s interest 

in preservation of his or her property is undeniable, governments have a converse and very 

strong police power interest in enforcing building safety regulations, even to the extent of 

requiring the demolition of buildings, for purposes of public health, safety, or welfare. See

409 Land Trust v. City of South Bend, 709 N.E.2d 348, 351 (Ind. Ct. App. 1999), trans. 

denied.

Mark alleges that the City’s February 22, 2011 order modifying Eishenhut’s 

demolition order to provide the Valdeses until December 1, 2011, to repair the Executive 

Inn failed to provide him adequate notice of what needed to be done to save the property 

from demolition, because it did not provide a detailed list of precisely what repairs needed 

to be performed. As we held earlier, however, the Valdeses waived the ability to challenge 

any alleged deficiencies in the February 22, 2011 order by not timely seeking judicial 

review of that order. They were not entitled to wait until the December 1, 2011 deadline 

passed, and only then attempt to raise a claim that the February 22, 2011 order was 

inadequate. Moreover, it appears that there was a list of needed corrective action that was 

prepared during the Knox Superior Court proceedings that the Valdeses never completed, 

thus giving notice of the numerous deficiencies of the hotel.
17

Mark also contends that the hearing conducted on December 1, 2011, did not meet 

due process requirements because the Valdeses were not permitted to cross-examine 

Eisenhut and were not permitted to present any evidence as to their attempts to remediate 

the property. Although it is true that the Commission prevented the Valdeses’ attorney 

from cross-examining Eisenhut, the transcript of that hearing does not indicate that the 

Commission prevented the Valdeses from presenting evidence. Rather, after Eisenhut 

testified, one of the Commission members stated, “you’ve heard what the City has said and 

what the City Inspector has said, so, I guess that we’d like for you to respond to that and 

help us to understand your side.” App. p. 200. The Valdeses’ attorney and James then 

made lengthy statements to the Commission regarding efforts to obtain permits, unfruitful 

efforts to obtain funding to make needed repairs, claims that they did not have notice of 

what needed to be done to the property to make it acceptable, and expressing their hope 

that the incoming administration would be more fair to the Valdeses.

Also, the December 1, 2011 hearing represented the culmination of close to five 

years of litigation, beginning with the Knox Superior Court action initiated by DHS in 

April 2007. Despite numerous proceedings in that case, as well as two lengthy hearings

before the Commission that resulted in it giving the Valdeses an additional ten months to 

repair the Executive Inn, they never were able to do so to the satisfaction of the DHS, the 

City, or the Knox Superior Court. Mark does not contend that any of the previous hearings 

or proceedings regarding the Executive Inn failed to comply with due process 

requirements. The Valdeses had multiple opportunities to argue the case.
18

Mark also fails to adequately explain how a more “formal” hearing on December 1, 

2011, as he claims should have taken place, would have led to more time to attempt to 

rehabilitate the Executive Inn. The evidence is that the Valdeses did not even attempt to 

seek any permits for repair of the hotel until late October 2011—approximately eight 

months after the February 22, 2011 order was issued and just a little over a month before 

the deadline for fully repairing the building. The evidence also is clear that, even if those 

permits had been granted by Eisenhut as Mark argues they should have been, the work they 

would have authorized would have fallen well short of what was necessary to correct the 

multiple problems the building had. Even where there are alleged procedural defects in an 

administrative proceeding, such errors may be deemed harmless and do not per se require 

reversal of a ruling when the record clearly demonstrates that additional process would not 

have led to a different result. See Berzins v. Review Bd. Of Indiana Employment Sec. 

Div., 439 N.E.2d 1121, 1127-28 (Ind. 1982); Jones v. Housing Auth. of City of South Bend,

915 N.E.2d 490, 497 (Ind. Ct. App. 2009), trans. denied. Such is the case here.5

Finally, Mark suggests the trial court additionally denied him due process when it 

did not hold an evidentiary hearing on his petition for judicial review. We believe Mark 

 

5 We also note that, as a statutory matter, it is not clear that the Act required that there be any hearing with 

respect to the December 1, 2011 demolition order. Indiana Code Section 36-7-9-7(g) provides that if a 

hearing authority modifies an enforcement authority’s order, “the hearing authority shall issue a continuous 

enforcement order . . . .” (Emphasis added). A “continuous enforcement order” is one that “can be enforced, 

including assessment of fees and costs, without the need for additional notice or hearing . . . .” I.C. § 36-7-

9-2. Thus, when the Commission modified the City’s original demolition order by providing the Valdeses 

an additional ten months to remediate the Executive Inn, it appears to have been a “continuous enforcement 

order” that could have been enforced without any additional hearing.
19

has waived this claim, or more accurately, invited any alleged error on this point. The 

doctrine of invited error prohibits a party from taking advantage of an error that he or she 

commits, invites, or which is the natural consequence of his or her own neglect or 

misconduct. Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005). In denying 

Mark’s motion to correct error and for an evidentiary hearing, filed after the trial court had 

already issued its ruling, the court noted that Mark’s counsel had, in chambers and during 

the October 9, 2012 hearing addressing the parties’ motions to dismiss, stated that no 

further hearings on the matter would be required. Although we cannot review what Mark’s 

counsel said in chambers, the trial court specifically asked at the October 9, 2012 hearing 

whether there would be any need for “additional argument beyond today,” and counsel 

responded that he had no plans for “any additional hearing and no evidence . . . based upon 

the progress of the case up to now.” Tr. pp. 4-5. Counsel then argued, over the City’s 

objection, that in order to fairly review the case the trial court would need to review the 

hearings from November 30, 2010 and December 7, 2010, but gave no indication that any 

further trial court hearing in the case was necessary. Counsel therefore invited the trial 

court to rule in this case without conducting an evidentiary hearing, and Mark cannot now 

complain about that alleged error.

We do acknowledge that counsel apparently changed his mind regarding the 

necessity of an evidentiary hearing after reviewing the recordings of the November 30, 

2010 and December 7, 2010 hearings and believing them to be inaudible in large sections 

and finding that none of the exhibits introduced at those hearings had been preserved. We 

reiterate our earlier holding that Mark is precluded from seeking judicial review of the 
20

February 22, 2011 order that resulted from the November 30, 2010 and December 7, 2010 

hearings. Thus, the quality of the recording of those hearings and the lack of exhibits from 

them is now irrelevant. Indeed, it might have been easier to reconstruct what happened at 

those hearings if the Valdeses had immediately sought judicial review of the February 22, 

2011 order rather than waiting until December 2011 to do so. The trial court’s task here 

solely was to review the propriety of the December 1, 2011 order. Although in its rulings 

the court also referred to the earlier proceedings in this case, and the entire background of 

this case is indeed helpful in understanding the context of the final demolition order, there 

was no need for the trial court to conduct an evidentiary hearing to attempt to reconstruct 

the hearings that led to the February 22, 2011 order. As for the December 1, 2011 order, 

all the trial court needed to do to satisfy its review obligation was to re-examine the 

evidence upon which the Commission acted in issuing that order, which obligation was 

fulfilled by reviewing the recording and transcript of the December 1, 2011 hearing. See

Kollar v. Civil City of South Bend, 695 N.E.2d 616, 620 (Ind. Ct. App. 1998) (holding trial 

court may satisfy its review obligation under the Act either by conducting an evidentiary 

hearing or by reviewing the evidence considered by the municipality), trans. denied. The 

manner in which the trial court conducted its judicial review did not violate due process.

IV. Trial Court’s Ruling

Mark also argues that the trial court erred on the merits in denying his petition for 

judicial review. Indiana Code Section 36-7-9-8(c) states that a trial court should review a 

municipality’s unsafe building action “de novo.” “De novo” as used in this statute “does 

not authorize a trial court to substitute its judgment for that of the agency below.” Id. at 
21

619. Rather, a trial court should reverse a municipality’s action only if it is “‘(1) arbitrary, 

(2) capricious, (3) an abuse of discretion, (4) unsupported by the evidence or (5) in excess 

of statutory authority.’” Id. (quoting Uhlir v. Ritz, 255 Ind. 342, 345-46, 264 N.E.2d 312, 

314 (1970)). 

Mark’s argument on this issue is brief, and aside from the due process arguments 

we have already rejected, boils down to a claim that it was premature to order demolition 

of the Executive Inn because there exists a reasonable probability that it can and will be 

fully repaired. It is true that when “a building can be reasonably repaired, it may be 

improper to order demolition of the property.” 409 Land Trust, 709 N.E.2d at 350. 

However, when a property owner has been given ample opportunity to repair a property 

but fails to do so within a reasonable period of time, demolition of the property may be 

appropriate. Id. This is precisely the situation here, as we have discussed. The Valdeses

had several years in which to adequately rehabilitate the Executive Inn to the point where 

it could once again be a viable business property, or even habitable, but failed to do so. 

The City need not wait indefinitely for the needed repairs to be made.

Even assuming the Valdeses should have been issued the permits they requested in 

October 2011, that clearly was a case of being a day late and a dollar short. Even if the 

work requested by the permits had been performed, it would have been insufficient to make 

the Executive Inn conform to all the necessary codes. Although there have been findings 

and discussions during the course of the proceedings that the Executive Inn is not “unsafe” 

as long as it is not occupied, and it is not currently occupied, a long-vacant building that is 

not up to code poses significant public health and safety risks with respect to vagrancy, 
22

neighboring buildings, and first responders who might have to address fires or crimes at 

the property. The Act specifically includes in its definitions of unsafe buildings one that 

is vacant and “not maintained in a manner that would allow human habitation, occupancy, 

or use under the requirements of a statute or an ordinance . . . .” I.C. § 36-7-9-4(a)(6). We 

cannot find error in the trial court’s ruling that the Commission’s December 1, 2011 order 

for demolition of the Executive Inn was not arbitrary, capricious, an abuse of discretion, 

unsupported by the evidence, or in excess of statutory authority.

V. Motion to Correct Error

We now address Mark’s argument that the trial court erred in denying his motion to 

correct error. We review rulings on motions to correct error for an abuse of discretion. 

Scales v. Scales, 891 N.E.2d 1116, 1120 (Ind. Ct. App. 2008). Much of the motion raised 

issues we have already addressed and rejected, such as the trial court’s not holding an 

evidentiary hearing, its denial of the motion to dismiss, and that the Executive Inn 

purportedly was not “unsafe” because no one currently resided in it. 

The remainder of the motion alleged the existence of newly discovered evidence, 

supported by affidavits from Mark and Timothy Minnette, a real estate agent. Motions to 

correct error based on the alleged existence of newly discovered evidence are disfavored. 

Id. To prevail upon a motion to correct error based on alleged newly discovered evidence, 

a party must:

demonstrate that the evidence could not have been discovered 

and produced at trial with reasonable diligence; that the 

evidence is material, relevant, and not merely cumulative or 

impeaching; that the evidence is not incompetent; that [the 

party] exercised due diligence to discover the evidence in time 
23

for the final hearing; that the evidence is worthy of credit; and, 

that the evidence raises the strong presumption that a different 

result would have been reached upon retrial.

Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006).

The alleged newly discovered evidence in this case relates almost entirely to claims 

that Eisenhut “stonewalled” attempts to repair the Executive Inn by refusing to issue work 

permits and/or by intimidating contractors who proposed to work on the building. Some 

of this alleged evidence was in fact related to the Commission during the December 1, 2011 

hearing and, thus, was not “newly discovered”; it was already considered and rejected both 

the Commission and by the trial court in reviewing the Commission’s demolition order. 

Other matters in Mark’s affidavit relate to events dating back to 2009 through December 

1, 2011, and it is unclear why such evidence could not have been discovered earlier and 

presented to the Commission. Finally, there is one example of alleged intimidation by

Eisenhut that was not and could not have been discovered until after the December 1, 2011 

hearing. However, it appears that this evidence was at best merely cumulative of other 

evidence of Eisenhut’s alleged interference in the Valdeses’ attempts to repair the 

Executive Inn. Moreover, it relates hearsay statements by third parties to the affiants of 

things Eisenhut allegedly said to the third parties, not things said to the affiants themselves. 

We do not believe the trial court was required to find such evidence to be either “worthy 

of credit” or that it raised a “strong presumption” that the result of either the Commission’s 

December 1, 2011 hearing or the trial court’s judicial review would have been different if 

such evidence had been presented. We cannot say the trial court abused its discretion in 

denying the motion to correct error.
24

VI. Appeal Bond

The final argument Mark raises is that the trial court’s required $500,000 appeal 

bond as a condition of staying demolition of the Executive Inn during the pendency of this 

appeal is excessive. A trial court’s determination as to the amount of a bond as a condition 

of staying execution of a judgment during appeal will not be disturbed absent an abuse of 

discretion. Kocher v. Gertz, 824 N.E.2d 671, 675 (Ind. 2005). Additionally, our motions 

panel has already denied a request by Mark to reduce the amount of the appeal bond. 

Although a writing panel of this court is free to disagree with and reverse a decision by our 

motions panel, we generally are reluctant to do so in the absence of clear authority 

establishing that the motions panel erred as a matter of law. Oxford Fin. Group, Ltd. V. 

Evans, 795 N.E.2d 1135, 1141 (Ind. Ct. App. 2003).

Indiana courts often decline to address the issue of the amount of an appeal bond as 

part of a decision on the merits, finding the issue to be moot at that point in the case. See

In re Guardianship of C.M.W., 755 N.E.2d 644, 651-52 (Ind. Ct. App. 2001). Moreover, 

Mark has not provided us with a transcript of the trial court hearing on the motion to stay 

execution and the City’s request for an appeal bond requirement; we have before us “only 

the assertions in the parties’ filed motions, responses, and attachments.” See Kocher, 824 

N.E.2d at 675. In such a situation, we cannot say that the trial court abused its discretion 

in fixing the amount of the appeal bond. See id.; Anthrop v. Tippecanoe School Corp., 156 

Ind. App. 167, 173, 295 N.E.2d 637, 642 (1973). We thus decline to revisit the motions 

panel’s decision not to reduce the amount of the appeal bond.
25

Conclusion

Although Mark timely sought judicial review of the December 1, 2011 demolition 

order, he waived claims related to the adequacy of the February 22, 2011 order by not 

timely challenging that order. The trial court properly denied Mark’s motion to dismiss 

because the administrative action for demolition of the Executive Inn did not irreconcilably 

conflict with the pre-existing Knox Superior Court action governing the property. Mark 

also has not established that he was denied due process with respect to the ultimate 

demolition order. He also has not demonstrated that the trial court erred in affirming the 

Commission’s action, denying his motion to correct error, or requiring the posting of a 

$500,000 bond to stay enforcement of the demolition order pending appeal. We affirm in 

all respects.

Affirmed.

CRONE, J., and PYLE, J., concur.